Estate Planning and Probate
Our firm’s approach in handling this area of the law is to meld compassion with guidance in assisting friends and loved ones during a difficult time. We accomplish this by assisting you with this often times delicate and complicated area of the law.
We offer the following services:
- Estate Administration
- Wills / Will Contests
- Sale of Real Property
- Fiduciary Representation
In probate matters, we assist the families, friends and personal representatives of the deceased through this emotionally challenging time. Our office has decades of experience in guiding our clients through the process of estate administration and are leaders in this area among Lexington probate attorneys.
Probate Law | Frequently Asked Questions
What is Probate Law?
Estate Administration or “Probate” as it is commonly known is the judicial process of winding up a person’s legal and financial matters after their death. An entity known as an “estate” is created to take the place of the person after their death and a person is appointed by the court to be responsible for administering the estate.
How is Someone Appointed as the Personal Representative of an Estate?
A personal representative can only be appointed upon application to the court under KRS 395.015. If the deceased person dies with a Will (or testate) to be admitted to the court for probate the personal representative is referred to as the Executor or Executrix in Kentucky depending on the gender of the applicant. In the person dies without a Will to be admitted for probate the decedent is said to have died intestate and the personal representative is referred to as the Administrator.
How do you Prove a Will in Court?
There are generally three circumstances in which a Will may be proven in court. A holographic (hand –written) will, a self-proving will, or a non-self- proving will.
Kentucky is one only a few remaining states in the country that permit the admission of holographic wills. It must be entirely in the handwriting of the decedent and singed by the decedent at the end of the will. It must be proven by the testimony of two credible witnesses who are familiar with the hand writing of the decedent. Pursuant to KRS 394.040, the witnesses must be able to testify, to the satisfaction of the court, that the handwriting is that of the decedent and contains the decedent signature.
Non Self Proving Wills are admissible through testimony provided by at least two subscribing witnesses to the will. The witnesses’ testimony will need to substantiate that the signature on the will is that of the decedent. A witness must also verify that they signed the will in the presence of the other witnesses and the testator at that time. Further, each witness must testify that the testator was eighteen years of age or older and the time of execution and that he or she was of sound mind at that time.
Self-Proving Wills are ones that contain the statutory language required in accordance with KRS 394.225. The will is executed and witnessed by at least two people; however it also contains a notarized statement that it was executed in conformity with state law. The fact that it contains the requisite language, is witnessed and signed in front of a notary eliminates the requirement of testimony from witnesses in court.
How Long After the Death of the Decedent Before the Reading of the Will Takes Place?
Popularized by TV and movies a “Reading of the Will” is a common misconception among heirs. Although it is permitted, there is no legal requirement that this take place. Instead a party either named in the will as executor or someone wishing to be appointed as administrator is required to notice “next of kin” of the decedent that they are applying to be named as personal representative to the estate of the decedent and for probate of the will if applicable.
What Are the Duties and Responsibilities of the Personal Representative?
First, in the case of a testate estate, the executor must produce the will and petition the court to have it admitted for probate to open the estate. In an intestate situation, the personal representative petitions the court to be appointed administrator. Second, executor or administrator must marshal (collect or gather) the assets of the estate. Third, the personal representative needs to notify any known creditors of the decedent, collect, identify, verify, evaluate and pay valid claims against the estate. Fourth, if warranted, to represent and or defend the decedent in any legal proceeding. Fifth, after settling with the valid creditors, make contact with the heirs of the decedent and distribute the assets of the estate in accordance with terms of the will or pursuant to the laws of intestacy in Kentucky. Sixth, the personal representative must also file any and all documents necessary to comply with state and federal law regarding payment of taxes owed. Lastly, the personal representative is responsible for and orderly and properly done settling and closing of the estate through the court.
How Long Does the Process Take?
Like many things in the law it depends on the factual circumstances involving the estate. In some instances, the probate process can be completed in a single day or can continue on for several years in others. The factors that determine this are related to the size of the estate, the terms of the will, number of creditors, and the relationship, number of, and cooperation amongst the heirs.